Rajasthan High Court - Jaipur
Smt Sapna vs Neeraj Khandelwal on 15 December, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 1775 / 2017
Smt. Sapna W/o Shri Neeraj Khandelwal D/o Shri Ramprasad
Khandelwal B/c Mahajan, Aged About 31 Years, 1-F-6, Mahaveer
Nagar Vistar Yojana, Kota, Raj.
----Appellant
Versus
Neeraj Khandelwal S/o Shri Laxminarayan Khandelwal, H.N. 1/29,
Jhalani Bhawan, Champanagar, Beawar, Distt. Ajmer (Raj.)
----Respondent
_____________________________________________________ For Appellant(s) : Mr.Samarth Sharma, Advocate. For Respondent(s) : Mr.Rajendra Prasad Sharma, Advocate. _____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Judgment Judgment reserved on : 5th December, 2017 Date of Judgment : 15th December, 2017 By the Court (Per Hon'ble Mr.Justice Ajay Rastogi):
REPORTABLE
1. The instant misc. appeal is directed against judgment & decree dt.06.03.2017 for granting decree of divorce instead of judicial separation after the allegation of cruelty being committed to her stands established as envisaged u/Sec.13(1)(ia) of the Hindu Marriage Act, 1955.
2. The point that arises for determination in short is that -
Whether the wife who has filed the petition seeking dissolution of marriage by a decree of divorce u/Sec.13(1)(ia) of the Act, 1955 treating the petitioner with cruelty once stands established on the basis of the material on record before the ld.Family Court can still be granted a decree of judicial separation instead of decree of (2 of 15) [CMA-1775/2017] divorce, as prayed for.
3. The relevant facts of the case necessary for determination of the question & relevant for the purpose are that marriage of the appellant with respondent was solemnized on 30.01.2011 in Beawar, District Ajmer according to the Hindu rites & customs. It was unfortunate that the spouse failed to maintain cordial matrimonial relations and the appellant-wife has lot of grievances and complaints against the respondent-husband and cumulatively it was alleged that she has been treated with cruelty.
4. Petition was filed by the appellant-wife seeking dissolution of marriage by decree of divorce u/Sec.13(1)(ia) of the Act, 1955 of being treated with cruelty before the ld.Family Court, Kota and referred to various instances regarding conduct and behaviour of the respondent-husband to establish that she has been treated with mental cruelty. It was alleged that there was heavy demand of dowry from the family members of the respondent but because of the non-fulfillment of demands, behaviour of the respondent and her in-laws converted from bad to worse and all the time they started to humiliate the appellant in front of the family members including neighbours and she was being treated inhumanly even worse then an animal and made her life miserable and it became impossible for her to live in her matrimonial home and a stage reached where the appellant was compelled to leave for her parental home and the respondent used highly abusive language and threatened her and her family members that she should not be sent back to her matrimonial home without fulfilling the demands. Number of efforts were made to resolve their (3 of 15) [CMA-1775/2017] matrimonial differences with the intervention of their family members, members of community but nothing came forward and ultimately because of the inhuman and pathetic behaviour of the respondent and her family members, there was no option left with her except to file divorce petition before the ld.Family Court, Kota of she being treated with cruelty u/Sec.13(1)(ia) of the Act, 1955 on 14.12.2012. The appellant also instituted a case for offence u/Sec.498A and 406 IPC against the respondent and that too is pending and also instituted a case under the Protection of Women from Domestic Violence Act, 2005.
5. Written statement came to be filed by the respondent and on the basis of the pleadings of the parties, the ld.Family Court, in all framed following three issues which read ad infra:-
"1. Whether the behaviour of the respondent towards the petitioner, on the basis of the averments made in the divorce petition, could be said to be cruel?
2. Whether the petitioner is entitled for the grant of decree of divorce against the respondent?
3. Relief?"
6. In support of her defence, the appellant recorded her statement as AW-1 Sapna and the respondent also got his statement recorded as NAW-1 Neeraj Khandelwal.
7. The ld.Family Court on the basis of the material on record, decided the issue No.1 in favour of the appellant holding that she is being treated with cruelty but still when the matter was considered for relief, as prayed for dissolution of their marriage, the ld.Family Court instead of granting decree of divorce granted (4 of 15) [CMA-1775/2017] her the decree of judicial separate under the judgment impugned dt.06.03.2017.
8. No cross objections have been filed by the respondent in assailing the finding recorded by the ld.Family Court in reference to issue No.1, which has been decided in favour of the appellant.
9. The main thrust of submission of counsel for appellant is that once the appellant has been able to successfully establish that the respondent used to treat the appellant with cruelty, still granting decree of judicial separation instead of decree of divorce dissolving their marriage is unreasonable and the decree of judicial separation be set aside and this court may declare their marriage is dissolved by granting decree of divorce.
10. Counsel further submits that the appellant has successfully proven the fact that the respondent used to beat her for not fulfilling the dowry demands and a chargesheet has been filed by the police u/Sec.498A & 406 IPC against the respondent and the same has been discussed by the ld.Family Court in detail and when the factum of the appellant being treated with cruelty by the respondent has been accepted by the ld.Family Court, there appears no reason in not granting her decree of divorce, as prayed which is one of the ground for divorce enumerated at least after the amendment being made u/Sec.13 which has been substituted by the Act 68 of 1976 w.e.f. 27.05.1976.
11. Counsel further submits that as regards the application for restitution of conjugal rights filed by the respondent u/Sec.9 of the Act, 1955 was nothing but to create a paper evidence and the fact is that despite of ex-parte order dt.21.07.2015, no efforts (5 of 15) [CMA-1775/2017] were made for its execution and in the given facts & circumstances, a case has been made out by the appellant to dissolve their marriage by granting decree of divorce instead of judicial separation, as awarded by the ld.Family Court under the impugned judgment & decree dt.06.03.2017.
12. Counsel for the respondent, on the other hand, has opposed the request and submits that discretion has been exercised by the ld.Family Court while passing the decree of judicial separation which could not be said to be illegal or arbitrary and merely because the decree of divorce for dissolution of marriage was prayed for by the appellant and even if the allegation of cruelty stands proved, still it was open for the ld.Family Court to grant decree of judicial separation instead of dissolution of marriage, as prayed for and this being a judicial discretion exercised by the ld.Family Court, which is duly supported by the material on record, needs no interference by this court.
13. We have heard counsel for the parties and with their assistance also perused the material available on record.
14. Before examining the question raised for consideration in the instant appeal, it may be advisable to take at least a glance of the Hindu Marriage Act, 1955 and the amendment which has been later on made and in particular the amendment made in the Act, 1955 in 1976 where the Parliament in its wisdom has made major amendments extending the scope of dissolution of marriage, which read ad infra:-
"Pre-amendment Sec.10- Judicial Separation: (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a (6 of 15) [CMA-1775/2017] petition to the district court praying for a decree for judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or
(c) has, for a period of not less than one year immediately preceding the presentation of the petitioner, been suffering from a virulent form of leprosy; or
(d) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
(e) has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or
(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.
Explanation. - In this section, the expression "desertion", with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so."
"Post-amendment Sec.10- Judicial Separation: (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and (7 of 15) [CMA-1775/2017] on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so."
"Pre-amendment Sec.13- Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) is living in adultery; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties, or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband (8 of 15) [CMA-1775/2017] had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality."
"Post-amendment Sec.13- Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;
(b) the expression "psychopathic disorder"
means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or (9 of 15) [CMA-1775/2017]
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation.- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding (10 of 15) [CMA-1775/2017] maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976."
15. Before passing of the Marriage Laws (Amendment) Act, 1976 cruelty was a ground only for judicial separation and the petitioner was required to prove that the respondent had treated him/her with such cruelty as to cause a reasonable apprehension in his/her mind that it would be harmful or injurious for the petitioner to live with the other party.
16. Under the Old Hindu Law, there was no provision of judicial separation except in certain exceptional cases because Hindu Marriage, at the initial stage when the Parliament enacted the Hindu Marriage Act, 1955, was considered to be an indissoluble union but in the change in structure of the society, the divorce was recognized under the Hindu Marriage Act, 1955. The ground of judicial separation and divorce before passing of the Marriage Laws (Amendment) Act, 1976 were different and the Act of 1976 made those grounds identical.
17. The Act of 1976 liberalized the law of divorce and also altered the sacramental nature of Hindu marriage. The Act of 1955 was amended earlier in the year 1964 which allowed even the wrong doer to apply for divorce and the Marriage Laws (11 of 15) [CMA-1775/2017] (Amendment) Act, 1976 further liberalized the time limits prescribed by the Act of 1964. The Marriage Laws (Amendment) Act, 1976 reduced the time limits for dissolution of marriage u/Sec.13(1A) of the Act, 1955. It further made the common grounds for both judicial separation and divorce and omitted the time limits specified for dissolution of marriage u/Sec.13(1) of the Act, 1955 and at the same time also inserted a new ground of divorce by mutual consent u/Sec.13B of the Act, 1955. The Act of 1976 further added two more grounds of divorce enumerated u/Sec.13(2)(iii) and (iv) of the Act, 1955 and at the same time, it further reduced the time limit from three years to one year to apply for divorce. The Marriage Laws (Amendment) Act, 1976 which makes cruelty also a ground for divorce, has changed the wording of the clause - "respondent has treated the petitioner with cruelty". The change in definition of 'cruelty' will signify that an act or omission or conduct which constitutes cruelty is a ground for judicial separation or divorce, even if it causes no apprehension of any sort in the mind of the petitioner.
18. The Apex Court in the case of G.V.N.Kameswara Rao Vs. G.Jabilli reported in (2002) 2 SCC 296 while interpreting 'cruelty' within the meaning of Sec.13(1)(ia) of the Act, 1955 has held that cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party, observed in para Nos.9 & 10 of the judgment ad infra:-
"9. Under Section 13(1) (ia) of the Hindu Marriage Act, on a petition presented either by the husband or wife, the marriage could be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner (12 of 15) [CMA-1775/2017] with cruelty. 'Cruelty' is not defined in the Act. Some of the provisions of the Hindu Marriage Act were amended by Hindu Marriage Laws (Amendment) Act, 1976. Prior to the amendment, 'cruelty' was one of the grounds for judicial separation under Section 10 of the Act. Under that Section, "cruelty" was given an extended meaning by using an adjectival phrase, viz. "as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". By the Amendment Act of 1976, "cruelty" was made one of the grounds for divorce under Section 13 and relevant provision reads as follows:-
"13. Divorce (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) *** *** *** (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty, or (i-b) *** *** ***
(ii)-(ix) *** *** ***"
10. The omission of the words, which described 'cruelty' in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct."
19. It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting the society, family home and the proper growth and happiness of children of the marriage.
(13 of 15) [CMA-1775/2017] Legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle and the Legislature is extremely circumspect in setting forth the grounds on which a marriage may be dissolved. The history of matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce can be granted. Over the decades, a more liberal attitude was adopted, fostered by recognition of the need for the individual happiness of the adult parties directly involved, but although the grounds for divorce have been liberalized, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. A marriage, in law, can be dissolved only by the method recognized in law and not otherwise.
20. Under the scheme of the Act, dissolution of a marriage is normally the last option which the Court should exercise but when a situation comes up, where living together for two of them is no longer possible or practical, directing the parties to live together as husband and wife would be totally meaningless.
21. In the statement of object and reasons of the Amending Act of 1976 the object was stated to be liberalize the provisions relating to divorce and according to the amended provision the courts have to interpret, analyse and define what would constitute cruelty depending upon many factors such as social status of parties, their education, physical & mental conditions, customs and traditions and may come to the conclusion that acts proved would amount to cruelty in a given case and there cannot be any precise definition or to give an exhaustive description of the (14 of 15) [CMA-1775/2017] circumstances which may constitute cruelty.
22. In our view the cruelty should be of such a nature as to satisfy the conscience of the court that relationship between the parties has deteriorated to such an extent that it would be impossible for them to live together without mental agony, torture or distress to entitle the party to secure divorce. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
23. In the instant case, the appellant-wife has been able to establish from the evidence and the material on record that she has been treated with cruelty by the act of respondent-husband who used verbal abuses and insults by using filthy and abusive language which has constantly disturbed her mental peace and she has to proceed to the extent of filing of a criminal case against him wherein chargesheet has been filed u/Sec.498A & 406 IPC. At the same time, this court would like to record that so far as the finding arrived at by the ld.Family Court on issue No.1 of the appellant being treated with cruelty is concerned, no cross objection has been filed by the respondent-husband questioning the finding arrived at with regard to issue No.1.
24. Indisputably, the petition was also filed by the appellant-wife seeking decree of divorce and once she has been able to establish from record that she was being treated with cruelty which is one of the ground for granting decree of divorce u/Sec.13(1)(ia) of the Act, 1955 which has been enforced after the Amendment Act, 1976 vide Notification dt.27.05.1976, there appears no reason for (15 of 15) [CMA-1775/2017] the ld.Family Court to still grant her the decree of judicial separation instead of decree of divorce, as prayed for by the appellant-wife and that apart no justification has been recorded by the ld.Family Court for granting her judicial separation which was never prayed for by her.
25. The instant misc. appeal succeeds and is hereby allowed. The appellant has been able to make out a case of dissolution of their marriage and for grant of decree of divorce on the proven facts on record. Accordingly, the judgment & decree impugned dt.06.03.2017 of the ld.Family Court granting her judicial separation is converted to dissolution of marriage and their marriage solemnized on 30.01.2011 stands dissolved and the appellant is granted the decree of divorce, as prayed for.
26. With the modification in judgment & decree dt.06.03.2017, the instant misc. appeal stands disposed of. No costs. (DEEPAK MAHESHWARI)J. (AJAY RASTOGI)J. Solanki DS, PS